Federalism
Civil liberties and civil rights
What’s the difference?
Generally speaking…
It’s a little confusing, then, that the Bill of Rights is where we get a lot of our civil liberties.
Liberty and equality are two widely-accepted and sometimes-in-tension traditions in U.S. politics and culture.
Big questions in civil liberties and civil rights often ask us to value freedom and equality at the same time and make tradeoffs.
If the answers were easy the questions wouldn’t be interesting.
The Federalists opposed including a Bill of Rights. Why?
Not worth losing the ratification debate over.
Shout some out (we’re going to walk through them).
Two other key amendments:
14th Amendment extended federal civil rights protections to states…incrementally.
Initial interpretation limited to restrict national government / secure rights to freed slaves.
Allgeyer v. Louisiana (1897): substantive due process standard
Issue: Can states prosecute individuals for speech advocating the overthrow of the government?
Holding: Yes, with limits. Sedition laws generally unconstitutional.
Upshot: Formal application of federal free speech protections to state law
SCOTUS has tended to expand the list of rights deemed fundamental,1 but it’s taken time
A non-exhaustive list by Amendment:
Notice anything about these dates?
Can you shout “Fire!” in a crowded theater? Technically, yes! But still, don’t.
When can public money subsidize religious education?
How important is a “well-regulated militia” these days?
Two prongs:
Who can tell me about the Danbury Baptists?
Danbury Baptists worried about persecution as a local religious minority. Wrote to then-president Jefferson.
Jefferson’s interpretation of First Amendment: combination of establishment and free exercise clauses establishes “wall of separation” between Church and State.
Jefferson also wrote that “Belief lies solely between man and his God…the legislative powers of the government reach actions only.”
This line would later be used to allow states to ban polygamy. Later line-drawing re: drug use in religious ceremonies.
Questions that recur in First Amendment jurisprudence:
I cannot stress this enough: the First Amendment restricts the government’s ability to regulate what you say.
The government can’t prosecute you for hate speech, but Instagram can remove it. And I can ask you to leave.
Your peers are not constitutionally obligated to respect your opinions.
That’s a matter of norms of civility, not rights to speech.
Early focus on “prior restraint” – can’t prohibit speech before the fact, but can punish after the fact.
1798: Alien and Sedition Acts banned criticism of Federalist government
Expired before challenge made it to the Supreme Court
Pretty easy call here: not constitutional.
States (at that time) not bound by First Amendment.
During run-up to Civil War, state-by-state criminalization of criticism of state’s stance on slavery
Lincoln:
World War I: Espionage Act of 1917 criminalizes, among other things, leafleting against the war
Schenk v. U.S. (1919): “clear and present danger” test.
Bradenburg v. Ohio (1969): direct incitement test. Advocating for illegal action in general is fine; inciting specific and immediate illegal action is not.
New York Times Co. v. US (1971)
6-3 ruling in favor of publication with nine separate opinions.
Upshot: government needs a very good reason to prevent publication of true information.
Relative to other countries, the United States is relatively permissive of hate speech.
You have the right to express ugly sentiments about other groups. But you can’t use that expression to intimidate members of those groups.
Usually, symbolic expression is treated similarly as speech.
Including its limits.
Court has typically worried more about corruption than inequality in spending capacity.
Buckley v. Valeo (1971): limits on donations to campaigns OK, but limits on independent expenditures are not. Affirmed in Citizens United v. FEC (2013)
How that works out in practice comes later.
Used to be much more strictly regulated.
Lying for money still not protected the way lying in other contexts is.
Spam is generally okay with some loose regulations
Unprotected speech:
“outsourcing censorship to citizens”?
What’s “incorporation” in the context of civil liberties?
Extending Bill of Rights protections to state laws.
How do Kernell, et al read a right to privacy into the Constitution?
Ninth Amendment / unenumerated rights; liberty implies privacy; enumerated rights create implicit zones of privacy
“Exclusionary rule?”
Illegally obtained evidence can’t be used in court
Why sue Gawker for invasion of privacy instead of libel?
Lower standards of proof (not newsworthy, vs. false with “actual malice”)
Why does the scale of the law pose problems for policymaking?
Requires general rules that can be broadly applied in the future, so it won’t fit everyone’s unique circumstances
“Peaceful assembly for lawful discussion cannot be made a crime” - DeJonge v. Oregon (1937)
But! Assembly still regulated:
Government and/or counterprotestors may also contest what counts as “peaceful”
Anti-Federalists worried that national government would disarm state militias.
For most of early U.S. history, gun regulations mostly limited to banning possession by formerly enslaved people.
National Firearms Act of 1934 in response to a) better technology; and b) organized crime.
Individual right to own guns for personal use not established by SCOTUS until 2008 (federal) and 2010 (incorporation to state/local).
Who can own which guns still contested
U.S. tends to be very skeptical of gun regulation.
We’ll talk about this more during interest groups week.
Or, “right to be left alone.”
Name fifteen signatories to the Declaration of Independence.
Article IV, Section 3 of the U.S. Constitution states (in part):
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
Explain what this means.
But seriously
Article VI, Section 4. Qualification for registration. Every person presenting himself for registration shall be able to read and write any section of the Constitution in the English language.
At the time, carve-out for anyone eligible to vote or descended from someone eligible to vote before January 1, 1867 (“grandfather clause”).
Fayetteville Observer, 1899
When do you think North Carolina’s literacy test became unenforceable?
When did the US become a “democracy”?
The right to vote is, generously, unenumerated.
The Constitution specifies who you can’t keep from voting, but it doesn’t say everyone can vote.
Why is this distinction important?
The material largely focuses on civil rights for Black Americans and women.
There are reasons for this, but it leaves out a lot.
We’ll come back to this at the end.
Declaration of Independence: “all1 men are created equal” and are endowed with natural rights.
This is clearly not put into immediate practice. But.
The story of civil rights in the United States is largely a story of marginalized groups acting collectively around this founding principle.
Abolition and women’s rights (including but not limited to suffrage)
The Liberator, American Anti-Slavery Society
Seneca Falls Convention, Declaration of Sentiments
Tensions and affinities between the two movements.
1808: Slave trade clause in Constitution expires
Missouri Compromise (1820): Slavery banned north of 36°
Compromise of 1850:
Kansas-Nebraska Act of 1854:
Dred Scott v. Sandford (1857):
Election of 1860:
Emancipation Proclamation: enslaved people in Confederate States free on Jan 1, 1863
13th-15th Amendments:
Brief military occupation of the South, followed by brief period of (violently contested) multi-racial democracy
Formal (Freedmen’s Bureau) and informal (Union Leagues) institutions promoting Black economic and political advancement.
Reconstruction formally ended by Compromise of 1877, Southern states move to formally reestablish white supremacy.
In addition to voting restrictions:
15th Amendment circumvented through the use of “colorblind” policies with clear intent.
White-only Democratic primary elections in South ruled unconstitutional in 1944.
Keele, Luke, William Cubbison, and Ismail White. 2021. “Suppressing Black Votes: A Historical Case Study of Voting Restrictions in Louisiana.” American Political Science Review 115(2): 694–700.
Civil Rights Cases (1883):
Plessy v. Ferguson (1896): - Separate but equal
Technological change, concentration of wealth, and series of political corruption scandals sparked wave of activism calling for increased transparency, accountability, and labor power.
Among other social movements/organizations, this is where we get:
Among other reforms, this is where we get
Meanwhile, NAACP has been developing legal strategy to challenge “separate but equal”
Gaines v. Canada (1938):
NAACP Legal Defense and Educational Fund
“If the imprimatur of constitutionality should be put on such a denial of equality, one would expect the foes of democracy to exploit such an action for their own purposes. The ideals embodied in our Bill of Rights ridiculed as empty words, devoid of any real substance.”
“…a lot of people try to pretend that the whole issue is a creation of Communist imagination.
But they are not fooling anyone with this kind of pretense…Negroes were stirred up long before there was a Communist Party, and they’ll stay stirred up long after the party has disappeared–unless Jim Crow has disappeared by then as well.”
Holding: segregation violates equal protection clause
Brown v. Board II (1955): integration “with all deliberate speed,” to be enforced by federal government
The civil rights movement was/is a social movement as much as a legal movement:
24th Amendment (outlawing poll taxes) ratified in 1964, extended to cover state/local elections in 1966
Civil Rights Act of 1964:
Voting Rights Act of 1965:
Voting rights for felons still left to states.
Eubank, Nicholas, and Adriane Fresh. 2022. “Enfranchisement and Incarceration after the 1965 Voting Rights Act.” American Political Science Review 116(3): 791-806.
Proposed in every Congress since 1923:
Passed House (354-24) and Senate (84-8) in 1972, quickly ratified by 22 states.
How do we evaluate whether a law violates civil rights?
Variety of legal tests, depending on whose rights are in question.
Strict scrutiny (case involves “suspect classification” of race, ethnicity, religion, or national origin):
Intermediate scrutiny (if case involves sex or gender):
Rational Basis (age, economic status, or other criteria):
Trump v. Hawaii (2018): upholds temporary ban on immigration from specific Muslim-majority countries
We never got a chance to talk about this article.
After territorial expansion, systematic ignorance of treaties/contracts.
Dawes Act (1887): Authorized government to parcel out land legally controlled by Native governments
Recent progress (McGirt v. Oklahoma (2020), e.g.)
Activism toward Americans with Disabilities Act (1990)
Moving to Part 2: Institutions
Congress: